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R E M A K K S 



OF 



HON. HEMY C. MURPHY, 



OF KINGS COUNTY, * 

UPON THAT PORTION OP THE MESSAGE OP HIS 
EXCELLENCY GOVERNOR SEYMOUR, 

BELATING TO 

AEBITEAEY AEHESTS, 

DELIYEEED IN THE SEJ^i^ATE, 



Marcli 5, 1863. 







.-. x 



mOi^^**^ ^' ' 



^'ilHtOT VM 



ALBANY: 

COMSTOCK & CASSIDY, PRINTERS. 

1863. 



question of what is called arbitrary arrests, within 
the State of New York ; for it is to that action within 
oar own State limits that the question is presented 
to our consideration. 

There are two branches of the enquiry somewhat 
involved together but yet essentially distinct — ■ 
arjrests by State warrant and the denial of the privi- 
lege of the writ of habeas corpus. It is undoubtedly 
true that if the writ of habeas corpus cannot be com- 
plied with so that the cause of detention may be 
inquired into, the means of arrest become immaterial 
to the subject of it, and whether legal or illegal, its 
effect is all the same to him. Still there are two dis- 
tinct questions, involved in the consideration of the 
subject and so the Govenor evidently regards them, 
I purpose to treat them, therefore, separately. There 
are however, some considerations belonging in com- 
mon to both of them upon which X will first say 
a few words. 

In both cases there is an exercise of power by the 
President, and the enquiry becomes proper, what is 
the nature of his authority ? This may briefly be 
answered by stating what he is and what he is not. 
He is the mere creature and instrument of the 
Constitution. The government of the United States 
itself is a limited organization made by a free people 
for their own purposes. It is confined in all its 



powers. Its ditferent departments are limited and 
restricted to particular duties ; and the executive is 
as distinctly confined in its authority as the legislative 
or judicial departments in theirs. Each and all can 
exert such powers only as the people have thought 
proper to entrust them with. On the other hand, the 
President is no crowned head. He takes no preroga- 
tive by hereditary right or by prescription, or as the 
advocates of monarchical power claim ex jure divino. 
He is not the fountain of power. He is only the 
recipient of it, and of just so much and not a particle 
more as is expressly conferred upon him. He has 
no reserved authority. All the powers not expressly 
given to him or prohibited to the States are reserved 
to the people and the States. 

These are cardinal principles in our government, 
differing in that respect" essentially and fundament- 
ally from most others. The President has no 
more power outside of the Constitution than the 
humblest citizen who treads American soil. When 
he transcends the authority expressly conferred upon 
him by that instrument, his authority in that regard 
is null. It may be disregarded and defied, and 
should be rebuked. He becomes an usurper, — worse 
than a dictator; Your dictator had at least the sem- 
blance of authority. It was expresslyv conferred 
upon him by the Senate and it was, with some regard 



6 

to popular rights, limited to six months. But the 
President who by his mere motion assumes for the 
period of his term the power to do acts in derogation 
of life, liberty, and property, has not even the justi- 
fication of a dictator. 

It was indeed against the exercise of powder such 
as claimed by the President in the cases which are 
the subject of our present consideration' that the 
colonies rose against the King of England. Among 
the causes set forth in the Declaration of Indepen- 
dence, for taking up arms it is enumdrated that 
the King of Great Britain had " affected to 
render the military independent of and superior to 
the civil power," and had combined with others " to 
abolish the free system of English laws in a neigh- 
boring province, establishing therein an arbitrary 
government so as to render it at once an example 
and fit instrument for introducing the same absolute 
rule in these colonies." How fearfully parallel are 
the causes of complaint now urged against the Fede- 
ral Administration by the people of the loyal States. 

What is true as to the limitation of the power 
of the President is also true of the limitation of the 
powers of Congress. Its enactments, beyond the 
authority conferred upon it by the Constitution, are 
utterly null. The Parliament of Great Britain, 
whence we derive our notions of liberty, declare in 



connection with the King, what the Constitution 
of that nation is. Practically they can alter, enlarge, 
or abridge its unwritten provisions adapting them to 
the change of circumstances in the country. But our 
Constitution is written. It is fixed, and can only be 
changed by the people themselves, in whom all power 
not delegated is reserved, whatever may be the state 
or condition of the country. Thus Congress can con- 
fer no power upon the President which it is not 
authorized expressly by the Constitution to do. 

In determining, therefore, the authority of the 
President we must resort to the fundamental law, to 
ascertain his powers, whether they are claimed by 
him from the Constitution directly or to be conferred 
upon him by act of Congress. No circumstances in 
the condition of the country, no necessity can confer 
upon him an iota of authority beyond what is found 
there. It matters not whether it be a time of 
peace or war, of prosperity or adversity, of concord 
or insurrection. That instrument was intended to 
embrace every condition of the country, and in my 
opinion, amply provides for all, and against all ; and 
one of its principal merits is that it is thus intended 
to step in and protect the people in times of disorder. 

There is another general consideration to be 
borne in mind. Our revolution was undertaken, our 
independence achieved, and our Government formed 



for the purpose of securing certain inalienable rights 
which our fathers claimed, and among them were 
those of property, life, liberty, and the pursuit of 
happiness, who claimed them as the heritage of 
Englishmen. They declared them not only sacred 
but inalienable, and so jealous were they of them 
that while they expressly reserved to themselves all 
powers not conferred upon the Government by the 
Constitution, they required amendments to that* in- 
strument as originally drawn, expressly guaranteeing 
the provisions of Magna Charta, and the bill of rights 
established in the revolution of 1 688. These guaran- 
tees everyone can read for himself, but briefly stated, 
they are the right of conscience in religion, freedom 
of speech and of the press, trial by jury, and arrest 
and imprisonment only according to the course of 
the common law. And lest the enumeration of these 
rights might be interpreted to the prejudice of the 
great principle that all rights and powers not granted 
by the Constitution were reserved to the people, it 
is expressly declared that the naming of these rights 
in particular shall not be construed to deny or dis- 
parage others retained by them. Arbitrary power 
is as carefully provided against as human ingenuity 
could devise, and we discover that one of the princi- 
pal objects in view is, to cut up by the roots th6 vile 
system of arrest and imprisonment by executive 



9 

authority and to vindicate and perpetuate beyond 
aU peradventure the rights of man against the pre- 
tensions of prerogative on the part of Government. 
With these allusions to the nature and powers of 
the Government and the natural, inherent and in- 
alienable rights of the citizen I pass to the considera- 
tion of the first question proposed. Citizens of this 
State, where no insurrection or invasion has taken 
place, who are not in the military service, have been 
arrested and imprisoned and taken from the State 
without warrant of any court or magistrate, by the 
arbitrary order of the President acting through the 
State or War Departments or other subordinates. It 
is the exercise of such authority that the Governor 
condemns, and the people of this State, at the 
late election, among other acts of the Federal Gov- 
ernment, rebuked. Now, sir, while the arrest itself 
is properly an executive act, the order of arrest is a 
judicial one. These two powers are distinct. They 
do not, cannot and should not be in the same depart- 
ment. Combined in one tyranny is the result. The 
founders of our Government particularly guarded 
against their being exercised by the President. Thus 
the Constitution declares that "no Twrants shall issue 
but upon probable cause, supportefty oath or affir^ 
mation," that " no one shall be held to answer for a 
capital or otherwise infamous crime unless on a pre- 



10 

eentment or indictment of a grand jury," and that 
" no person shall be deprived of life, liberty .or pro- 
perty without due process of law." All these provi- 
sions look- to judicial investigation or judicial 
action before an arrest can be made. Has the 
President any right to determine the judicial point 
of probable cause ? Does the common law permit 
any warrant to issue except by the magistracy ? If 
* not, and it seems to be too plain for argument, then 
where is to be found any judicial authority in the 
executive ? The Constitution expressly declares 
that the judicial power of the United States 
shall be vested in one Supreme Court and in such 
inferior courts as the Congress may from time to 
time ordain and establish. This power is thus 
placed in an independent branch .of the Government 
and Congress is prevented from conferring it upon 
any other than tribunals proceeding according to 
the course of the common law. 

The Senator from the Nineteenth admits the limit 
to executive power as regards its civil authority, but 
finds a warrant for the proceedings of the President 
in his military authority, and in the demands of the 
people. In ord|| that I may do him no injustice, I 
will quote his language as it is printed : 

" Nobody claims that tlio President can do tlicse things in liis 
capacity of Chief Magistrate and in time of peace. His powers 
Rs civil executive are then limited by the restraints imposed 



11 

upon him, as such, by the express language of the Constitution. 
But the President is not merely the Chief Magistrate and civil 
executive of the nation, he is also the Commander-in-Chief of the 
army and navy — and the same Constitution wliich makes him 
the one, makes him the other also. The same instrument which* 
defines and restrains his powers in time of peace a? civil execu- 
tive, confers vjyon Jdm every military poioer necessary to save 
the Oovernracnt in time of vku\ as Commander-in-Chief?^ 

"With almost entire unanimity the people called upon tlie 
Government to arrest these traitors and prevent their doing- 
further mischief. In response to this demand, and to stop the 
spread of treason at a moment of imminent peril, the Govern- 
ment did order the arrest of a few of the noisiest and •vforst of 
these men. And yet as it is J must concede that it has its effect, 
for it appeals to the blindest and lowest passions of luiuianity." 

In plain terms he justifies the Presid(5nt by the 
martial law, and the old and much perverted maxim 
that the voice of the people is the voice of God. 
Now' the authority of the President whether in his 
military or civil capacity has one and the same 
origin — the Constitution ; and the only power con- 
ferred upon him by that instrument as respects 
military matters is that which makes him the Com- 
mander-in-Chief of the army and navy. Congress in 
the exercise of its granted powers, has given him right- 
fully the power to make rules and regulations for 
the government of the military and naval forces of 
the United States. But these powers areHn terms 
confined to persons in the military and naval service. 
In this respect he has the same powers in substance 



12 

as the King of Great Britain, and certainly no more. 
When he assumes military authority over citizens 
who are not in the military or naval service and, for 
the sake of the argument, I will include persons 
within any district in actual military occupation 
where the civil law is suspended of necessity, he 
transcends the authority conferred upon him and is 
guilty, in the language of the Governor, of a crime. 
It is from no desire to shield crime or to punish 
treason that exception is taken to his course. The 
laws have provided for such offences and the civil 
courts of the State are open to punish offenders. To 
attempt to supersede them by the will of the execu- 
tive, under any pretence whatever, is to deprive 
the innocent as well as the guilty of the protection 
which the laws afford them. False accusations, 
secretly made and fomented by private malice, reach 
the ear of the executive and there is no remedy. 
This will of the executive is called martial law. 
But martial law cannot exist where the laws are 
enforcible, especially under our form of Government. 
It is at best, in the sense in which it is now used — 
that is, as an emanation of the supreme militaify 
authority of the President — a law of necessity, only 
applicable when there is no civil rule. The authori- 
ties upon this point are incontroyertible. The Gav- 
ernor cites that of Lord Coke : 



13 

" More than two centuries since," he Bays, " that bohl defender 
of English hberty, that honest and independent judge, Lord 
Coke, declared : " Where courts of law are open, martial law 
cannot be executed," and also that " the power that is above the 
law, is unfit for the King to ask or us to grant." Are English 
laws more sacred, or is English hberty more secure than ours V 

This is old authority it is true, but it h,as the 
uniform sanction of the beat writers on the subject 
since the days of Coke. Without quoting from them 
in detail, I cannot forbear citing that of Sir 
James Mackintosh as he is quoted by Sir F. Thesiger 
in the debate which took place in the House of Com- 
mons in 1861, upon the administration of the affairs * 
of Ceylon. That eminent lawyer then said, " he 
would quote a passage from the writings of one of 
the most accomplished philosophers, jurists and 
statesmen this country (England) had ever produced — 
he alluded to Sir J. Mackintosh. He said : 

" When law is silenced by the noise of arijis the rulers of the ^ 
armed force must punish as equitably as they can those crimes '\ 
wliich thi'eaten theu" own safety and that of society and no longer. / 
Every moment beyond is usurpation. As soon as the law can ■ 
act, every other mode of punishing supposed crime is of itself cm ' 
enormous cri/ne.^^ - 

This language is almost the same as the Governor 
adopts in stigmatizing the character of the arrests 
made in this State. 

Perhaps it may be objected that this is British 
authority only, and has no application to our own 
Constitution. Well, sir, although all our notions of 



14 

law and liberty are derived from England, and we 
are therefore justified by the sound rules of argu- 
ment in using authorities derived from thence, 
here is one not liable. to exception of any kind" and 
to the very point and in my judgment conclusive. 
It u the solemn judgment of the State of New York 
herself. It is the declaration of our State convention 
which ratified the Federal Constitution. It is an 
explicit document. Among other points of the Con- 
stitution considered by it was the military power, and 
how the Constitution limited that power. It declares 
among other things " that standing armies in times 
of peace are dangerous to lijjerty, and ought not to 
be kept up except in cases of necessity, and that at 
all times the military should be under strict subordi- 
nation to the civil power." At all times in contra- 
distinction to times of peace. And then in signifying 
the ratification- by the people of this State they 
declare such to be their understanding of the Consti- 
tution in these words : 

" Under these impressions and declaring that the rights afore- 
said are consistent with the said Constitution and in confidence 
that the amendments which shall have been proposed to the said 
Constitution will receive an early consideration, we, the said 
deleo"ates, in the name and behalf of the people of the State of 
New York do by these presents assent to and ratify the said 
Constitution." 

This is the language not only of the delegates who 
had been chosen by the people to express their views, 



16 

but of sucli men, who were members of the convention, 
as John Jay, whom Washington selected from among 
the purest and wisest of that day to be Chief Justice 
of the United States, as Alexander Hamilton, who 
was an aid of "Washington in the war, and who, in 
intellectual vigor, has had few equals and no superior 
in our State, and as Melancthen Smith, Chancellors 
Livingston, Lansing, and Jones, Judges Duane and 
Hobart, Richard Morris, Lewis Morris, and not last 
or least, George Clinton, then Governor of the State, 
clarum et venerabile nomen, who was chosen to preside 
over the deliberations of the convention, and whom 
you have as the presiding genius of this body. There 
he stands before you. Senators, in all the dignity of 
his high official position to stimulate you in the path 
of duty, and to remind you, in the history of his 
own life, that resistance to tyranny is obedience to 
God. These men had been tried in the fires of the 
revolution ; they understood well, from personal ex- 
perience, the exigencies of war, and of a war of 
rebellion. They are an authority which not only 
are you bound to respect for themselves, but which, 
as delegates of the people of this State, seals forever 
your lips and those of every New Yorker, from deny- 
ing that according to the Consitution the military 
authority of the Federal Government is subordinate 
to the civil power in war as well as in peace. 



16 

My honorable friend, the Senator from the Nine- 
teenth, says the people were clamorous for these 
arrests. Sir, I have a great respect for the opinion 
of the people deliberately expressed, but for popular 
clamor, none. As a democrat and a republican, in 
the broad and catholic sense of those terms and not 
in any partizan sense, I bow to their views when 
regularly and intelligently expressed, but not as 
against law and order. In moments of passion and 
in times of turbulence and faction, it is to me but as 
the idle wind. Clamor deluged the streets of the 
fair and gay and festive city of Paris in blood and 
carnage. It brought the Saviour of mankind to the 
cross, and bound his holy temples with a crown of 
thorns. It is said of that eminent divine and good 
man, though great enthusiast, John Wesley, that in 
an argument with his sister he claimed for his side 
this popular cry — Vox populi, vox del. "Yes, 
brother," said the lady meekly, with the sagacity of 
her sex which so often penetrates the sophistries and 
fallacies of our own, "that means. Crucify Him, Crucify 
Him," and the founder of Methodism was silenced. 
I have a respect for the decision of the people when 
expressed in the forms of law such as we witness now 
every day rolling from the ballot box over the State 
like the tides of a mighty ocean, in slow and gather- 
ing volume and in obedience to the unerring laws of 



17 

nature and truth, to overwhelm, in its resistless flood 
the violators of the rights. Your laws and constitu- 
tions are all a protest against popular clamor. They 
are intended to protect the weak and feeble against 
the violence of the many. They are efficient 
and sooner or later will be vindicated and upheld 
against the strong arm of power. We hold our 
liberties by no such uncertain tenure as popular 
demand. There is not authority in the Government 
of the United States in obedience to any popular 
clamor or otherwise to take from me or you the most 
trifling article of property. It cannot deprive the 
most abject fellow being of one moment of liberty 
except by due course of law. To attempt to do so 
is a crime against him, against good order, against 
the liberty of a free people. And, sir, I speak delib- 
erately when I say, in my humble judgment, it will 
be the duty of his Excellency the Governor in the 
event of a renewal of the attempt to arrest on the 
soil of this State any of its citizens by what is called 
a State warrant, to resist it in such a manner as 
becomes the executive of a free people, firmly and 
decidedly, but temperately and with a patriotic spirit, 
and as befits a State which loves and cherishes the 
Union, and is resolved to defend it. 

I come now to consider the privilege of the writ of 
habeas corpus, which the President has undertaken to 



1^ 

suspend not only in the brief period after the break- 
ing out of the rebellion and preceding the meeting of 
Congress on tte 4th of July, 18G1, when there were 
circumstances of justification for his course, but 
ever since and without justification. The benefit 
of this writ is an esrfential "and inherent right 
of the people— it is that of having the legality 
of imprisonment inquired into summarily and 
without delay. It is so regarded in the Con- 
stitution which authorizes its suspension under 
certain circumstances. That provision reads : " The 
privilege of the writ of habeas corpus shall not 
be suspended unless when in case of rebellion or in- 
vasion the public safety may require it." The Con- 
stitution no where else refers to this privilege except 
in the provision before alluded to, which it adopts 
from Magna Charta. It here speaks of it as a right 
as much connected with liberty as the air we breathe 
is with life, as already existing and unquestioned. 
And so it was. It existed in full force in the colonies 
from their foundation and in the mother country, 
from time immemorial. The Supreme Court of the 
United States so regarded it in the case ex parte 
Buford, reported in 3 Cranch. But let me cite the 
observations of that distinguished writer whom I 
have already mentioned, Sir James Mackintosh, in 
his Review of the Causes of the Revolution of 1688. 



19 

"Tho most ancient of our fiindeniental laws had declared the 
I)rinciple that no freeman could be imprisoned without legal 
authority. The iramemoriail antiquity of writ of habeas corpus 
seems to j^rove that this principle was coeval v.ith the law of 
Euo-land. In irregular times, however, it had been often violated ; 
and the judges imder Charles I pronoimced a judgment, which 
if it had not been condemned by the petition of right would 
liaA'e vested in the crown a legal power of arbitrary imprison- 
ment. By the statute which abolished the Star Chamber, the 
Parliament of 1641 made some important jDrovisions to facilitate 
deliverance from illegal imprisonment. For eleven years 
Lord Shaftfibury struggled to obtain a law which should 
complete the securities of personal liberty, and at length that 
great though not blameless man obtained the object of his labors 
and bestowed on his country the most perfect security against 
arbitrary imprisonment which has ever been enjoyed by any 
society of men. It has banished that most dangerous of all 
modes of oppression from England. It has efiected tliat great 
object as quietly as ii-resistibly ; it has never in a single instance 
been resisted or evaded, and it must be the model of all nations 
who aim at receiving that personal liberty without which no 
other liberty can subsist." 

So much in regard to England. Now in regard to 
our own country. I have abeady referred to the opinion 
of the Supreme Court of the United States ; but there 
is contemporary evidence of some weight. I refer 
to an incident in the history of the President of the 
first Continental Congress, Henry Laurens, of South 
Carolina, who was afterwards sent to Holland to 
negotiate a loan for Congress, but was captured by a 
British cruisrer, taken to England and imprisoned 
there. I hope I do not give offence or cause sus- 
picion of treason by referring as an authority to a 



20 

citizen of Bouth. Carolina. The name of Henry 

Laurens, like that of Washington and some othprs of 

the rebellious States is " freedom's now and fame's." 

On his liberation from prison the British minister, 

Lord Shelburne, said, " "Well, Mr. Laurens, if we must 

acknowledge your independence, I shall be grieved 

for your own sakes. You ivill lose the henejit of the 

habeas corpus dct" The patriot replied, " We have 

adopted and we can make laws," He proceeds with 

the subject, in an account which he himself has left 

us, as follows : 

" Lord Shelburne was so anxious lest by a separation from ^ 
Great Britain, the United States should lose the benefit of the 
habeas corpus act, as to induce liis Lordship to send Sir William 
Meredith to expostulate with me on the subject ; Sir William 
came to my bedside. I was lying ill with the gout. After a 
little general conversation, he presented me a thin- quarto volume, 
written and published by himself, on the habeas co?-pus act, de- 
sired I would read it with attention, and he would call again. 
Sir William called in two days, asked if I had perused the book. 
" Yes, Sir William, and as far as I am competent to judge, it is 
very ingenious, but it contains nothing Substantially new to me. 
I perceive, however, you cannot in England liberate a prisoner 
with so much facility as we can do in America. I myself with 
the aid of an attorney-at-law, have set a common foremast sailor 
who had been illegally imprisoned on a Saturday afternoon at 
liberty that very Saturday night, by a writ of habeas corpics." 

We thus see that not only was the value of this 
privilege well understood, but it was exercised with 
more facility even in the colonies than in the mother 
pountry, When therefore the framers of the Consti- 



21 

tution speak of the writ as a remedy exist^g and its 
privilege only to be suspended at a particular emer- 
gency, they speak of it as a right as common law, as 
their birthright derived from the land of their fathers. 
It was in fact peculiar to Great Britain and her colo- 
nies, and therefore by every fair rule of construction 
any doubt as to its meaning or to provisions affecting 
it, is to be examined in the light of English practice 
and authority. The clause in our Constitution 
authorizing the suspension of the privilege is, it is 
claimed, not clear as to what department of the Gov- 
ernment has that power, and that the necessity ♦for 
its exercise is properly to be judged of by the execu- 
tive. But granting that the Constitution is not ex- 
plicit, — though the contrary is the fact, the English 
constitution will at least aid us to a conclusion. The 
bill of rights asserts that the power of suspending 
laws is not in the crown but in Parliament ; and we 
find accordingly that since 1688 although the privi- 
lege of the writ has repeatedly been suspended in 
England, it has never been attempted by the King. 
An act of Parliament has always been passed for the 
purpost. When, therefore, the Constitution autho- 
rizes its suspension here, without saying by what 
department, it intends by no other Mseans than by 
law. The Constitution is however explicit. That 
instrument is not a crude and undigested mass of 



22 

provisions. It is a perfectly arranged and logical 
document. It not only distributes the powers of the 
Government among the different departmehts, but 
each department is treated of by itself, and we find 
accordingly that the legislative, judicial and exe(?u- 
tive branches are disposed of in separate articles. In 
the article treating of the legislative department 
occurs this clause in relation to habeas corpus, and 
in that section of it restricting the powers of Congress. 
It is evident therefore that the makers of the Con- 
stitution considered the suspension a legislative power 
frqm this circumstance ; but above and beyond this 
it. is a sound rule and in fact the only sound rule, to 
construe what is written or what is said, in connexion 
with the subject matter immediately under consider- 
ation. 

But we are not left to English analogy or logical 
deduction to determine this question. The same 
contemporaneous authority w^hich I have already 
cited — the ratification of the Constitution by the 
New York convention, disposes of this point as direct- 
ly as it does the other. Thus in enumerating the 
rights of the people to which the constitution con 
forms, the delegates say : 

" Every person restrained of liis liberty is entitled to an 
enquiry into the lawfulness of such restraint and to a removal 
thereof if unlawful, and that such enqiiiry or removal ought not 
to be denied oa* delayed except when on account of .public 



23 

danger the Congress shall suspend the privilege of the writ of 
habeas coipus.'''' 

The Constitution as it stands they thus declare to 
be consistent with the exercise of the pow-er of sus- 
pension by Congress. It never entered into their 
heads to suppose that the executive Avould claim the 
power — the one man power, against which they had 
been fighting for seven long and dreary years. On 
the contrary, they thought the power of Congress 
itself was a little too broad, and accordingly they 
recommended a restriction that the suspension should 
not contmue for a longer period than six months. 
Now observe the language in which this recommen- 
dation is made : 

"That the privilege of the habeas corjnts shall not be sus- 
pended for a longer .term than six months or until twenty days 
after the meeting of the Congress next following the passing the 
act for such susj)e?ision.^^ 

This recommendation assumes as a matter of course 
that the suspension would necessarily be by act of 
Congress. It is unnecessary to pursue the argument 
further. And, in fact, the friends of the President 
seem at last to have abandoned the case. The news- 
papers of this day come to us publishing an act of 
Congress authorizing him to suspend the privilege. 
As the lawyers say, this is a cognovit — a confession 
of the usurpation hitherto. 



24 

But the concession comes too late. The mischief 
has been done. The confidence of the people when 
bestowed is generous and indulgent of error com- 
mitted with good motives and for justifiable ends. 
Before the meeting of Congress on the 4th of July, 
1861, the acts of the President in this regard were 
overloolied, for Congress could not act, and the 
people submitted because there was an apparent im- 
pending necessity. Since that time there has been 
no justification. Congress did liot choose to act, 
when it assembled in the summer of 1861, thereby 
either leaving it to be inferred that the neces- 
sity no longer existed, or what is more true that 
body felt disposed to allow the course of the Presi- 
dent to continue. There was thus no alternative ; 
except for the people of this State, in the majesty of 
their strength, to rise and declare their want of con- 
fidence. The vote has been taken and it stands with 
all its consequences — the proof of a divided people as 
regards this policy of the administration in the con- 
duct of the war. 

I deplore its results as an Union-loving man. 
They are more disastrous to our cause than the loss 
of an hundred battles. This war has been upheld 
by the people of this State because they desired to 
see the obligations of the Constitution enforced 
against the miserable oligarchy of the South and to 



25 

crush their unjustifiable rebeUion against the govern- 
ment and authority of the Union But they did not 
intend that their rulers should disregard the Consti- 
tution towards thera. It is an inconsistency wliich 
the future historian will point out as at once inex- 
plicable and unfortunate, that the federal administra- 
tion while seeking to enforce the constitutional duties 
of the rebelsj^ has been itself guilty of violations of 
its constitutional obligations to the people of the 
loyal States, where the courts are open, the judges 
pure, and the authorities vigilant to punish treason. 
The consequence of this departure from principle has 
been painfully apparent. Whatever may have been 
the guilt of many of those arrested and confined — 
and I doubt not that many were guilty — it is no less 
true that innocent men have been incarcerated 
through political or personal enmity and the servile 
zeal of subordinates, till their health has been de- 
stroyed and their intellects crazed. It is thus the 
people have become divided and depressed. They 
stand aghast at the frightful despotism into which, 
if it be not checked, the country must fall. Sir, I 
have done. 



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